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THE POSITION OF THE JUDICIARY IN THE 
UNITED STATES 


BY 

ALPHEUS HENRY SNOW 

11 

Attorney-at-Law, Washington, D. C. 


Publication No. 693 

American Academy of Political and Social Science 
Reprinted from The Annals, September, 1912 


Price, 25 cents 


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This reprint is made from the September, 1912, ANNALS 
containing the following papers : 


PART I 

MERITS AND LIMITATIONS OF THE INITIATIVE, 
REFERENDUM AND RECALL 

FUNCTIONS OF THE INITIATIVE, REFERENDUM AND RECALL 
Jonathan Bourne, Jr., United States Senator from Oregon. 

THE INITIATIVE, REFERENDUM AND RECALL 

George W. Guthrie, Formerly Mayor of Pittsburgh, Pa. 

THE SO-CALLED PROGRESSIVE MOVEMENT 



Charles M. Hollingsworth, Author of “From Freedom to Despotism,” 
Washington, D. C. 

ACTUAL STATE LEGISLATION 

John A. Lapp, Legislative Reference Librarian, Indiana State Library. 
DIRECT LEGISLATION AND THE RECALL 


Henry Jones Ford, Professor of Politics, Princeton University. 


PART H 

PROVISIONS FOR AND RESULTS OBTAINED BY THE 
INITIATIVE, REFERENDUM AND RECALL 

PROVISIONS FOR STATE-WIDE INITIATIVE AND REFERENDUM 

C. B. Galbreath, Secretary of the Ohio Constitutional Convention, and form¬ 
erly State Librarian of Ohio. 

THE INITIATIVE, REFERENDUM AND RECALL IN SWITZERLAND 

William E. Rappard, Of Geneva, Switzerland, Instructor in Economics, Har¬ 
vard University. 

THE REFERENDUM AND INITIATIVE IN MICHIGAN 

John A. Fairlie, Ph.D., Professor of Political Science, University of Illinois, 
and Member of the Michigan Constitutional Convention, 1907-8. 

MAINE’S EXPERIENCE WITH THE INITIATIVE AND REFERENDUM 
J. William Black, Ph.D., Professor of History, Colby College, Waterville, 
Maine. 

THE WISCONSIN PLAN FOR THE INITIATIVE AND REFERENDUM 
S. Gale Lowrie, Ph.D., Of the Wisconsin State Board of Public Affairs. 

THE INITIATIVE AND REFERENDUM AMENDMENTS IN THE PRO¬ 
POSED OHIO CONSTITUTION 

Robert Crosser, Chairman of the Committee on the Initiative and Referendum 
SOME CONSIDERATIONS UPON THE STATE-WIDE INITIATIVE AND 
REFERENDUM 

W. F. Dodd, University of Illinois. 

THE RECALL—ITS PROVISIONS AND SIGNIFICANCE 

H. S. Gilbertson, Assistant Secretary of the Short Ballot Organization, New 
York. 

THE WORKING OF THE RECALL IR SEATTLE 

Fred Wayne Catlett, Secretary to the Mayor of Seattle. 


PART HI 

THE JUDICIAL RECALL 

THE JUDICIAL RECALL—A FALLACY REPUGNANT TO CONSTITU¬ 
TIONAL GOVERNMENT 

Rome G. Brown, Attorney-at-Law, Minneapolis, Minn. 

DANGERS THAT LURK IN THE RECALL OF THE JUDICIARY 

James A. Metcalf, Editor, “The Dawson County Review,” Glendive, Mon¬ 
tana. 

THE POSITION OF THE JUDICIARY IN THE UNITED STATES 
Alpheus Henry Snow, Attorney-at-Law, Washington, D. C. 

A NEW METHOD OF CONSTITUTIONAL AMENDMENT BY POPULAR 
VOTE 

William Draper Lewis, Dean of the Law School, University of Pennsylvania. 


Price $1.50 bound in cloth; $1.00 bound in paper. Postage free. 





THE POSITION OF THE JUDICIARY IN THE UNITED 

STATES 


By Alpheus Henry Snow, 

Attorney-at-Law, Washington, D. C. 


At the present time two circumstances are directing public 
attention to the position which the judiciary holds in the American 
political system. The initiative, the referendum and the recall are 
extending widely, and the prospect is that they will soon become 
prevalent throughout our states. It is clear that if these methods 
of controlling governmental action by popular vote should be carried 
sufficiently far, they might be used so as to extinguish the power 
which our courts have to treat as void any governmental action 
which is in excess of the powers granted by our written constitutions. 
At the same time that the position of our judiciary is thus endangered 
by the coming of these new forms of political action, its position has 
been seriously weakened, in the eyes of many of our best citizens, 
by its own action in exercising its power to hold laws unconstitu¬ 
tional. It is probably true that some of our courts have exercised 
this power in a retrogressive manner; that is, in such a way as to 
interfere with the people in their proper development and progress, 
and with the nation in its fair competition with foreign nations. 
Thus the position of our judiciary in our political system is at the 
same time endangered from without and from within. If it be true 
that our courts are proving themselves unable properly to perform 
the high and extraordinary functions which we have laid upon them, 
those who advocate the extension of the initiative, the referendum 
and the recall are entitled to be heard with attention. If our system 
is sound, and is merely operating badly for the moment on account 
of some specific defect or ambiguity in our constitutions, or because 
we are passing through some temporary social or economic phase or 
condition, or because of the too great rigidity of the legal mind as 
now trained, the initiative, the referendum and the recall as remedies 
for the difficulty must be considered along with other possible rem¬ 
edies. If it be true that our system has broken down by reason of 
the inability of our courts to bear the burden placed on them, the 

( 286 ) 




The Judiciary in the United States 287 

next most feasible plan is that of “responsible government” under 
an unwritten constitution, as it exists in other countries, and to this 
the initiative, the referendum and recall, if applied in a wide sense, 
seem necessarily to lead. 

It therefore becomes necessary to examine the philosophical 
and legal basis on which our system rests, and to make up our minds 
whether our system is reasonable and practicable and as good as or 
better than any other. If we conclude that it is, and that therefore 
the functions which we have given our courts are reasonable and 
capable of being properly performed by them under all ordinary 
circumstances, it will be necessary to attempt to discover the reason 
why some of them have happened to make the decisions which are 
regarded as retrogressive. If we succeed in discovering these reasons, 
it will particularly be necessary to consider how far the initiative, 
the referendum and the recall can be used, if they can be used at 
all, as a means of remedying any aberrations of our courts in per¬ 
forming their superintending and nullifying functions. 

An attempt will first be made, therefore, to state the philo¬ 
sophical and legal basis on which our system rests. The simplest 
way seems to be to state the propositions of politics and law which 
underlie our system, beginning with the most fundamental and 
proceeding by successive steps to the various derivative propositions, 
illustrating each, so far as space will permit, by reference to histor¬ 
ical facts. 

The fundamental proposition upon which our system rests, as 
it would appear, is, that governments are the agents of the governed. 
There are, as history, experience, and philosophy show, in the last 
analysis, only three forms of government—the patriarchal form, 
the agency form, and the imperial form. In the patriarchal form 
governmental power is conceived of as derived from a source external 
to the people governed, that is, from God, and is devolved from above 
downward upon subordinate o icers and subjects. In the agency 
form, governmental power is conceived of as derived from the people 
governed, who delegate limited powers to officers who are neither 
above nor below the people, but are on an equality with the people 
as contracting parties and agents. In the imperial form, all power 
is conceived of as derived from the people governed, who are assumed 
to have conveyed all their powers to a ruler or government, so that 
the ruler or government thus has a power equally absolute with 


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288 


The Annals of the American Academy 


that of a patriarch and devolves his or its power from above down¬ 
wards upon subordinate officers and subjects. 

When, therefore, it is said that our system depends upon our 
acceptance of the proposition that governments are the agents of the 
governed, it is the same as saying that we have chosen to adopt the 
agency system of government and have not allowed ourselves to be 
subjected to the patriarchal system or to the imperial system. 

It becomes important, therefore, to inquire what is necessarily 
involved in the acceptance of this fundamental proposition—that is, 
to inquire what are the fundamental principles of agency. About 
this there is no di iculty. Agency is one of the most common and 
necessary of human relations. The fundamental principles of agency 
have been settled for at least fourteen centuries. These principles 
were summed up in the civil law by two maxims. The first of 
these was, Obligatio mandati consensu contrahentium consistit; a 
translation of which is, “The powers of an agent are derived from the 
consent (or agreement) of the contracting parties.” The second 
was, Rei turpis nullum mandatum est; a translation of which is, 
“There can be no agency to do an unjust (or wrongful) act.” The 
meaning of these two maxims is, that the agent has no powers except 
those delegated to him by the principal and accepted by the agent 
in the agreement of agency made between them, and that any acts 
done by the agent in excess of these powers are void as to the prin¬ 
cipal; that even if the agent acts within the powers thus delegated 
to and accepted by him and agreed to by both parties, yet if in so 
acting he does an unjust or wrongful act to any one,—as distinguished 
from an act of negligence,—the wrongful act is in excess of his powers, 
and is void as to the principal; and that even if the principal and 
the agent agree that the agent shall have power to do wrong or 
injustice, the agreement is void as a contract of agency and operates 
only to make the principal a wrong-doer jointly with the agent, in 
case the agent does the wrong or injustice. When we say, therefore, 
that our political system is based on the agency theory, we mean 
that our governments have no powers except those which are dele¬ 
gated to them by the people and accepted by the governments by 
acceptance of office, and which are agreed to between the peoples 
and the governments; that even if our governments act strictly 
within the letter of the powers granted, they have no power in exer¬ 
cising those powers to do injustice to any one; and that if the people 


The Judiciary in the United States 


289 


should attempt to delegate to any of our governments a power to do 
injustice, the attempted delegation of power would be void, and the 
governments would have no power to do injustice. 

The first great public document in which this theory was fore¬ 
shadowed was Magna Charta. This great charter, granted by King 
John to the Barons in 1215, was made, however, under such circum¬ 
stances and was couched in such language that it required interpre¬ 
tation. In subsequent confirmatory charters granted by the English 
kings to the people by act of parliament, these principles gradually 
became more clearly stated. The Reformation, by emphasizing the 
importance of the individual and his direct relationship to God, gave 
a wide extension to the idea that all institutions, including the insti¬ 
tutions of government and church, are for the benefit of the individual; 
and it was a natural and necessary conclusion that all the persons 
concerned in the management of institutions and the institutions 
themselves were agents of those for whose benefit they existed. 
The people of Continental Europe, however, long accustomed to 
regard themselves as members of clans or armies, and to regard the 
head of their nation as invested with patriarchal or imperial power, 
were not able to apply this theory successfully against the opposition 
of those attached by conviction or interest to the patriarchal or 
imperial theory. 

The principle that governments are the agents of the governed 
was recognized in the charter granted by the king in council to the 
Massachusetts Bay Colony in 1629. By that charter it was provided 
that the freemen of the colony should meet in general court every 
three months, and that at one of these courts, called the court of 
election, all the officers of the colony should be elected. In the Mas¬ 
sachusetts Body of Liberties of 1641, this system was established by 
statutory provision, and it was also arranged that officials might 
be recalled for cause at any of the general courts other than the 
court of election by majority vote upon cause shown. 

The same right of the citizens of the colonies to elect all their 
own officers was recognized in the Rhode Island charters of 1643 
and 1663, and in the Connecticut charter of 1662. The colonies 
regarded these charters as the ones which really expressed the full 
extent of their political rights, though other colonial charters pro¬ 
vided for appointment of the governor, and in some cases the governor 
and upper house, by the King of Great Britain in council. 


290 


The Annals of the American Academy 


The Continental Congress was from the outset a congress of 
agents of the colonies. When that congress adopted the Declaration 
of Independence, it committed the United States for all time to the 
agency theory. It was declared that governments are instituted 
among men for the benefit of the individual and primarily to protect 
and preserve each individual in the reasonable exercise of those 
attributes of life, motion and prehension which are common to all 
human beings and which are essential to the existence of every human 
being. It was declared that each individual has a divine right, by 
reason of the fact that all are equally created by God with these 
attributes, to life, liberty (motion) and the pursuit of happiness 
(prehension). “To secure these (divine) rights’* of the individual, 
the Declaration asserts, “governments are instituted among men,” 
evidently meaning either by their consent or by external force. 
However governments may be instituted, whether by consent or 
force, the Declaration declares, they are the agents of the governed. 
The words are: “That to secure these rights, governments are insti¬ 
tuted among men, deriving their just powers from the consent of 
the governed.” This clearly means that governments have no 
power to do any unjust acts, and that all their powers to do just 
acts are derived from the agreement of agency between the govern¬ 
ment and the governed. The expression “deriving their just powers 
from the consent of the governed” seems clearly to be a combination 
of the two maxims of the law of agency above quoted, that the powers 
of an agent are derived from the consent (or agreement) of the con¬ 
tracting parties, and that there can be no agency to do an act which 
is unjust or wrongful to any one. 

The second proposition on which, as it would appear, our system 
is based, and which is a derivative from the first, is, that states are 
corporations. If governments are the agents of the governed, the 
whole organization consisting of the government and the governed 
permanently operating together as one mechanism or body, is an 
artificial person or corporation. The people governed are in this 
view the members of the corporation, and the government the officers 
and board of directors of the corporation. 

The principles of the law of corporations are those of the law of 
agency. The corporation, regarded as an artificial and legal person, 
is the agent of its members. Its powers are those which are agreed 
to between it and the members; the members delegate specific powers 


The Judiciary in the United States 


291 


to the corporation, and the corporation accepts them. The corpora¬ 
tion has no powers except those delegated by the members, and even 
if it acts within the letter of those powers it has no power to do an 
act which is unjust or wrongful to any one. Any act of a corporation 
in excess of its powers is void. Even if the incorporators or the 
state should attempt to give the corporation power to do injustice 
to any one, such attempted delegation would be void, and the cor¬ 
poration would have no power to do injustice. 

Prior to the Reformation the conception of a number of persons 
united for a common purpose under a governing body of agents 
selected by them, as an artificial person which was itself the agent 
of the members of the corporation, though not unknown, was little 
understood or applied. Religious, charitable and educational cor¬ 
porations existed, but cities, towns and trade-guilds furnished the 
principal examples of political or industrial corporations. So far as 
there was anything corresponding to the modern territorial state, it 
was not conceived of as a corporation, but as a family or clan. The 
city-states and small republics of Europe, however, to some extent 
recognized themselves as corporations. The possibility of regarding 
territorial communities as corporations was also made manifest 
when the republics of Venice and Genoa, in the fourteenth and fif¬ 
teenth centuries, chartered corporations for trading and banking 
purposes with powers of government over the colonies of merchants 
on the shores of the Black and Aegean seas. This practice was soon 
followed by France, Iolland and England. It only needed that the 
colony should grow strong enough to control the corporation for the 
colony to consider itself as the corporation and to elect its own officers. 
The idea of a “commonwealth,” or a corporation on a fixed territory 
having for its purpose the common weal of the persons there residing 
and inhabiting, was the logical result of the social, economic, political 
and religious ideas and theories which the Reformation brought 
forth. Granting that the development of the individual is the im¬ 
portant thing to be considered both in theology and politics, and 
that all institutions are for this purpose, it follows that it is not only 
the right but the duty of each individual to assist in molding the 
institutions which are for his benefit. By conceiving of a group of 
persons united for a common purpose as a personality outside of 
and distinct from them all, and as the agent of all, the institution 
was brought under the control of the group, the artificial personality 
being the agent of the group. 


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The Annals of the American Academy 


At the time the colonization of New England began in 1621, 
the corporation theory of the state was just beginning to take strong 
root in England. This theory was opposed by the ruling classes as 
a whole, though some of the nobility and a great part of the well-to-do 
farmers and professional men believed in it. Those who emigrated 
from England to America at this time did so because they believed 
that governments are and of right ought to be the agents of the 
governed, and that states are and of right ought to be corporations. 
In the ‘‘Mayflower Compact” of 1621, entered into between the 
members of the colony which afterwards settled in Plymouth, Massa¬ 
chusetts, the colonists “covenanted and combined” themselves 
into “a civil body politic” for their “better ordering and preserva¬ 
tion.” The charter of the Massachusetts Bay Colony of 1629 pro¬ 
vided that the persons named and their associates should be a “body 
corporate and politic.” The people of Connecticut by their “Funda¬ 
mental Orders” in 1638 “associated and conjoined” themselves as 
a “public state and commonwealth.” In 1641, the Commissioners 
to Regulate the Colonies appointed by the Lords and Commons 
after Charles I had refused to act with them on account of their 
insistence on the agency theory of government, granted to Roger 
Williams and his associates at Providence Plantations “a free charter 
of civil incorporation and government” by which the colony was 
given the name of “The Incorporation of Providence Plantations.” 
The charter of Connecticut of 1662 declared that the persons named 
and their associates should constitute “one body incorporate and 
politic,” and the same language was used in the Rhode Island charter 
of 1663. In all these charters provision was made for election of 
all the officials by the members of the corporation, and these colonies 
were treated by the English government as English corporations. 
This, however, the colonies contested. They claimed that they were 
American corporations, and states, created by the voluntary act of 
the members, and that the charters granted by the English govern¬ 
ment were mere authentications or approvals of the voluntary union 
of the colonists. In this they were in accord with the trend of modern 
thought. More and more it is beginning to be realized that corpora¬ 
tions are created by the act of the members and not by the act of the 
state, and that when the state “grants” a charter of incorporation 
its act is in legal effect merely an act of authentication and approval 
for reasons of convenience, and not in a true and real sense of grant 


The Judiciary in the United States 


293 


of corporate powers. It is on account of the realization of this fact 
that progressive states now-a-days allow corporations to organize 
themselves under general laws. 

After the colonies became independent, the idea that they were 
at once states and corporations was universally accepted and acted 
upon. 

The third proposition on which the American system, as it would 
appear, is based is, that corporations may be formed of corporations. 
This proposition is now a familiar one to us in the industrial and social 
as well as in the political world. As a corporation is a legal person, 
there is no reason why it cannot be a member of a corporation. The 
idea that a corporation may with other corporations, or even with 
other natural persons, form a corporation, is now so familiar to us 
as to be a commonplace. The modem “trusts” for industrial pur¬ 
poses and the modem “federations” of trades unions or other cor¬ 
porations for social purposes, are made up of corporations as members. 
A holding or “trustee” or “federating” corporation is created by 
the combining corporations which is given federal powers for the 
common purposes. The whole organization constitutes a corpora¬ 
tion composed of corporations. 

The conception of a corporation composed of corporations which 
should also be a state, was first worked out or at least foreshadowed 
by an arrangement between the colonies of Massachusetts Bay, 
Plymouth, Connecticut and New Haven, made in 1643, when Eng¬ 
land was paralyzed by civil war and the colonies, surrounded by 
enemies, were thrown on their own resources. These four colonies 
entered into a “Consociation” or “Confederation,” declaring that 
they did so “for mutual help in our common concerns, that as in 
nation and religion so in other respects we be and continue one.” 
The new federal corporation, by the name of “The United Colonies 
of New England,” was governed by a board of eight commissioners, 
two from each colony; the board having power, by a three-fourths 
vote, to bind the whole federal corporation and state for certain 
specified purposes. This corporation composed of corporations 
continued in existence and operation for over thirty years, dealing 
with the common interstate concerns of these four colonies and with 
their foreign interests, without much interference from England. 

From 1690 forward various schemes were proposed for federating 
the American colonies so as to form one federal corporation or state 


294 


The Annals of the American Academy 


either under Great Britain or in federation with that state. Among 
others, William Penn in 1697 formulated a very definite and complete 
plan. None of the plans for this purpose, however, was acceptable, 
but an arrangement was devised which, as it evolved, resulted in 
uniting the colonies and Great Britain into one corporation or state, 
which the colonies regarded as a corporation composed of corpora¬ 
tions, to which the name “the British Empire” became attached. 
From 1696 until 1765, there existed in England a governing tribunal 
for the common purposes of Great Britain and the colonies which was 
made up of members of the King’s Privy Council. This tribunal was 
called “the Committee of the Privy Council for Plantation Affairs” 
and was assisted by a subordinate body called “the Commissioners 
for Trade and Plantations.” The whole British Empire, composed 
of Great Britain and the colonies was, as matter of fact, in cases 
arising before the tribunal, treated as if it were a corporation com¬ 
posed of corporations and as if it were a federal state composed of 
states; the state of Great Britain being in fact treated as the ruling 
state for the common purposes. 

The fourth proposition on which the American system is based, 
it would seem, is, that to the convenient and orderly existence and 
operation of corporations, and of states which recognize themselves 
as corporations, written charters or constitutions are necessary. 
This is because limitations of power can be made effective only as 
they are carefully formulated in writing and published so as to be 
known to all concerned. As corporations are by their definition 
artificial persons and agents with limited powers, and as their 
officers are agents oftentimes linked together in a complex series of 
operations where there is a great division of labor, it is essential 
to their orderly and convenient management that these limitations 
of power should be formulated in written constitutions. The more 
complicated the corporation the more necessary the written formu¬ 
lation of the limitation of powers. Hence a written constitution is 
even more necessary to a federal state, which is composed of states, 
than to a compact state 

The discussion that was carried on prior to the American Revo¬ 
lution concerning the limitations of the powers of Great Britain and 
the colonies as constituent elements of the great state and corporation 
called “the British Empire,” called attention to the necessity of 
written constitutions. It had long been recognized that corporations 


The Judiciary in the United States 


295 


for industrial or social purposes could not conveniently exist except 
under written charters. Cities and towns also had discovered the 
necessity of having written charters. All the American colonies 
except Virginia and New York were organized under charters recog¬ 
nizing more or less completely their corporate character, and the 
colonies had thus learned to appreciate the convenience of having 
their fundamental law contained in one document. The study of 
the relations between Great Britain and the colonies brought out 
the fact that the complex corporate and political unity called “the 
British Empire” was under a constitution of its own quite different 
from that of Great Britain. It also brought out the fact that there 
was a great difference of opinion as to what the provisions of the 
constitution of the British Empire were or ought to be. All Americans 
agreed that the empire was an aggregation of states under the head¬ 
ship of Great Britain, and that the powers of each of the constituent 
states were limited in such a manner that the whole British Empire 
could hold together and operate for the common good. It was 
pointed out by writers on both sides of the water that so large and 
complex an organization of states ought to exist under a plan of organ¬ 
ization carefully formulated and written down in one document, so as 
exactly to express the limitations of the various agencies composing 
the government. The first act of the Continental Congress after 
deciding upon a declaration of independence, was to set about making 
a written constitution for the union of the colonies as states and 
corporations. All the colonies except Connecticut and Rhode Island, 
in accordance with the suggestion of the Continental Congress, 
adopted new written constitutions. Connecticut and Rhode Island, 
having power under their colonial charters to elect all their own 
officers, adopted their colonial charters as their state constitutions, 
and lived under them for many years after they became states. 

The fifth proposition on which the American system is based is, 
as it would seem, that in order to keep the various agencies in a cor¬ 
poration working within their proper spheres and in harmony with 
each other, there must be somewhere in the organization a superin¬ 
tending agency with power to nullify the action of all other agencies 
which is in excess of the powers which these agents ought properly 
to exercise. Where a corporation is composed of corporations and 
the constituent corporations are thus at the same time agencies of 
government and members of the larger corporation, the necessity 


296 


The Annals of the American Academy 


of having some superintending and’ nullifying power to secure the 
proper working of the complicated mechanism becomes still more 
evident. 

In the prevailing thought of the Americans, the king in council 
was the agency in the British Empire in which this superintending 
and nullifying power was lodged. The majority of the Americans 
regarded the Lords and Commons of Great Britain as the local legisla¬ 
ture of Great Britain, and insisted that it was the duty of the king 
advised by his privy council, as an arbitral and judicial tribunal, to 
use his veto power as a nullifying power for the purpose of nullifying 
even acts of parliament which this tribunal should find to be in 
excess of the powers which Great Britain ought properly to have 
exercised as a constituent state and a governmental agent of the 
British Empire. It was because they considered that George III 
had failed and refused to exercise this superintending and nullifying 
power, as the superintending and nullifying agency of the whole 
empire, and had united with his ministers and the lords and commons 
in attempting to assume patriarchal or imperial power in the federal 
state called “the British Empire,” that he was held responsible in 
the Declaration of Independence for the disintegration of this federal 
state. 

The sixth proposition on which, as it would appear, the American 
system is based, is, that the superintending and nullifying power is 
an agency of a judicial, and not of a legislative or executive nature; 
and that therefore, although it is an extraordinary kind of judicial 
power, it may more safely be committed to the judiciary than to 
the executive or the legislative or to an extraordinary agency outside 
of the legislative, the executive and the judiciary. Such an extraor¬ 
dinary agency might easily pervert a superintending and nullifying 
agency so that it would become in fact a patriarchal or imperial 
power. 

In the first written federal constitutions adopted by the American 
Union, it was sought to avoid the necessity of a superintending and 
nullifying tribunal by establishing between the colonies merely a 
permanent alliance or confederation advised by a Congress of am¬ 
bassadors. The Declaration of Independence was itself in part a 
written constitution of union of the American states, for in it they 
described themselves as “The United States of America;” but as it 
contained no specification of the powers which the union, as distinct 


The Judiciary in the United States 


297 


from the states, should exercise, it created only a permanent alliance 
or confederation. The articles of confederation specified the powers 
of the union; the powers granted to congress being those which 
before the Revolution the king in council had exercised over the 
colonies as the federal head of “the British Empire” with their 
consent. These articles made no provision for any superintending 
and nullifying agency. They, however, denied to the union any 
power to lay or collect taxes, or to regulate interstate or foreign com¬ 
merce, or to acquire or govern colonies. As these were the powers 
respecting the exercise of which in the empire Great Britain had 
made excessive claims of power, and out of which the dispute between 
Great Britain and the colonies had arisen, it seems to have been hoped 
that, by withdrawing these powers altogether from congress, disputes 
regarding the limits of powers would be avoided, and thus no superin¬ 
tendence or nullification would be required. 

The Constitution of the United States, adopted in 1787, con¬ 
ferred these three disputed powers on the union and provided a 
method for nullifying acts done in excess of power by the union or 
by the states. This nullifying power as respects the limitations 
placed upon governments and states by that constitution, was vested 
in the Supreme Court of the United States in the last instance, 
though permitted to be exercised by all the courts subject to the 
final decision of the supreme court. It was thus recognized as a 
judicial power, though of an extraordinary kind. This was logical; 
for the question whether an agent, a governmental officer, a corpo¬ 
ration or a state has exceeded his or its powers, can best be decided by 
the hearing and examination of evidence and the application of legal 
principles. 

The seventh proposition on which the American system, as it 
would seem, is based, is, that in order to enable the judiciary to 
exercise its superintending and nullifying agency to prevent excess 
of powers of the other agencies of government, it is necessary that the 
constitution of the federal state should be made the supreme law of the 
federal state, and that the constitution of each state should, subject 
to this supreme law, be the supreme law of the state. By such an 
arrangement, this extraordinary power of the courts is exercised as 
a part of their ordinary judicial functions in hearing and adjudicating 
cases between ordinary parties litigant, and there is little possibility 
that power exercised in this non-spectacular manner will ever be given 


298 


The Annals of the American Academy 


any spectacular setting so as to lead to the popular belief that the 
depositaries of this power are really exercising a patriarchal or an 
imperial power. The citizen, observing the courts laboriously in¬ 
vestigating facts and basing their decisions upon subtle distinctions 
of law drawn from experience and reason, is not likely to regard the 
courts as patriarchs or emperors. The safety and permanence of 
the whole agency system of government in states may, indeed, be 
said to depend upon the acceptance by the people of the proposition 
that the limitations of the powers of their governmental agencies 
are under a supreme law established by the people and interpreted 
like other law by the courts. Only through the prevalence and 
acceptance of this idea can there be assurance at all times against 
the recrudescence of patriarchal or imperial power. 

The courts in the United States were, by the constitution of 
1787, given jurisdiction to superintend and nullify all action of any 
of the governments limited by the Constitution of the United States 
by means of a provision which made the constitution, and the acts 
of congress in conformity with the constitution, 4 ‘the supreme law 
of the land.” Under this provision the constitution is applied by the 
courts, with final appeal to the supreme court, in the same manner 
as other law, except that it is treated as supreme so that any govern¬ 
mental action inconsistent with its provisions is void. In the same 
manner, the constitution of each state is its supreme law, subject 
to the Constitution of the United States which as to the limitations 
upon governmental power contained in it is supreme over all law 
throughout the United States. 

Enough has been said, it is hoped, to have satisfied the reader 
that our form of government is based on the propositions that govern¬ 
ments are the agents of the governed; that states are corporations; 
that federal states are corporations composed of corporations; that 
in all corporations written constitutions are necessary to determine 
the limitations of the powers of the officers of the corporation and of 
the corporation itself; that in the case of corporations composed of 
corporations, written constitutions are still more necessary to fix 
the limits of the complex agencies; that within every corporation, 
and especially within every corporation composed of corporations, 
there must somewhere be vested a superintending and nullifying 
power and agency, which can promptly and effectively nullify all 
action done in excess of power, so as to keep the whole mechanism 


The Judiciary in the United States 


299 


and the whole artificial personality working to its full capacity and 
effectiveness; that it is safer, as preventing the possibility of the 
recrudescence of patriarchal or imperial power, to vest this superin¬ 
tending and nullifying power in the judiciary rather than in the 
legislative or the executive, or in any extraordinary governmental 
agency outside of and distinct from the legislative, the executive 
and the judiciary; and also more logical, since the superintending 
and nullifying power is judicial in its nature; and that it is necessary, 
in order that the judiciary should exercise this great power, that our 
written federal constitution should be the supreme law for federal 
purposes and our state constitutions supreme law for state purposes. 

Our system is therefore just, scientific and practical. It is more 
just, more scientific and more practical than any other system; 
for none would now assert that the patriarchal or the imperial theory 
of government is more just, more scientific and more practical than 
the agency theory, and all other systems are based on compromises 
between the agency theory and the patriarchal or imperial theory. 

It therefore re lains to attempt to discover in what respect 
our system is at the present time operating badly, and to attempt to 
suggest a remedy; and particularly to inquire whether the remedy 
can be had by the use of the initiative, the referendum or the recall. 

A constitution of a corporation or of a state must evidently 
deal with four different subjects: 

First. The organic structure of the corporation or state—that 
is, the relations which the parts of the mechanism bear to each other. 

Second. The relations between the governing board of the 
corporation or the government of the state, and the individuals 
composing the corporation or state as members of the corporation 
or citizens. 

Third. The relations between the corporation or state and its 
members or citizens, and those corporations or states with which 
it is federally or permanently connected or united, and their members 
or citizens. 

Fourth. The relations between the corporation or state and its 
members or citizens, and those corporations or states with which 
it is not federally or permanently connected or united, and which 
are “foreign” to it, and their members or citizens. 

The present defects in the working of our system are not with 
respect to the relations described in the first, third or fourth specifica- 


300 


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tion. There is no complaint of the rulings of our courts in constitu¬ 
tional cases involving the relations between the different parts of our 
state and federal governments or between the Union and the states 
as parts of the mechanism of the Union, or involving our relations 
with our protectorates or dependencies, or with foreign nations, 
or with the citizens of any of these countries, or between our citizens 
and any of these countries or their citizens. The present complaint 
arises exclusively under the second specification. It is charged that 
our courts have ruled erroneously in constitutional cases involving 
the relations between the state and its citizens and inhabitants. In 
nearly all the cases where the courts are alleged to have made these 
erroneous constitutional decisions, their decisions have been lade 
under constitutional provisions which declare that “no person shall be 
deprived of his life, liberty or property without due process of law.” 

On examining the decisions, it will be found that this consti¬ 
tutional provision has been gradually growing in importance in the 
estimation of the courts, until now it is regarded as furnishing a gen¬ 
eral test of the constitutionality of governmental action. In so inter¬ 
preting this provision, it seems that the courts have erred. 

By referring to the Petition of Right of 1627, presented by 
the lords and commons of England to Charles I, where the expression 
“due process of law” first occurs in a constitutional document, we 
shall find that these words are there used exclusively as applied to 
cases where a man’s life, liberty or property is taken away on account 
of his alleged wrong-doing. The expression occurs in that petition 
only in the following statement: 

“That no man, of what estate or condition that he be, should 
be put out of his lands or tenements, nor taken nor imprisoned 
nor put to death, without having been brought to answer by due 
process of law.” 

As respects the receipt by the government of the property of 
good citizens as taxes to be used for the public benefit, the Petition 
of Right does not use the expression “due process of law,” but the 
word ‘‘ consent. ’ ’ That provision reads: 

“That [the people of England] should have this freedom, that 
they should not be compelled to contribute to any tax, tallage, aid 
or other like charge not set by common consent in parliament.” 

Lord Coke, who is often wrongly quoted as authority for using 
the “due process of law” provision as a test of the validity of all 


The Judiciary in the United States 


301 


forms of governmental action, held that quite a different test ought 
to be applied. In Bonham’s Case (8 Coke, 115-118a), decided in 
the court of common pleas in 1611, while Coke was chief justice, he 
said, delivering the opinion of the court: 

“ When an act of parliament is against common right and reason, 
or repugnant, or impossible to be performed, the common law will 
control it and adjudge such act to be void.” 

His successor in the chief justiceship, Hobart, in the case of 
Day v. Savadge (Hobart, 87), decided about 1620, said, in delivering 
the opinion of the court: 

‘‘An act of parliament, made against natural equity, as to make 
a man judge in his own case, is void in itself; for jura naturae sunt 
immutabilia, and they are leges legum (for the laws of nature are 
immutable, and they are the laws of laws).” 

As late as 1701, Holt, Chief Justice of the Court of King’s 
Bench, in the case of City of London v. Wood (12 Modem, 669), 
approved Lord Coke’s statement in Bonham’s case. 

The American lawyers from the period of the Stamp act onward, 
led by James Otis, adopted the view of Coke. 

John Adams, in his autobiography, gives an account of the draft¬ 
ing of the first resolutions of the Continental Congress by the 
committee of which he was a member. One question, he tells us, 
was whether the resolutions should declare the powers of Great 
Britain over the colonies to be limited by “the British constitution 
and our American charters,” or whether they should “recur to 
the law of nature” as the basis of their claim to have rights as the 
governed, against Great Britain as their supreme, but legally limited, 
government. He says that he was “very strenuous for retaining 
and insisting on” the law of nature. The resolutions as adopted 
declared that the limitations of the governmental power of Great 
Britain as respects the colonies and their inhabitants existed “ by the 
immutable laws of nature, the principles of the English constitution, 
and the several charters or contracts.” It was natural, therefore, 
that in the Declaration of Independence our ancestors should have 
based their claim to be absolved from their former political con¬ 
nection with Great Britain, and to be independent states, on “the 
laws of nature and of nature’s God;” and that they should have 
asserted that governments, however instituted, can only exercise 
such powers as are just, as agents of the governed. Not to have 


302 


The Annals of the American Academy 


inserted this limitation that the powers exercised by govemmvnt 
must be “just” would have been to have rendered the Declaration 
inconsistent with their previous contention, and would have made 
the framers justly chargeable with bad faith. Having insisted in 
the controversy with Great Britain upon the universal principle 
that the powers of all governments are limited to those which are 
expressly delegated and which are just, it was logically obligatory 
upon them to adhere to this general principle in the Declaration of 
Independence and to make this principle applicable to every govern¬ 
ment and state which should ever be formed by the American people. 
That they intended to do so, and that they used apt words to do so, 
there can be no doubt. 

The true limitations upon the powers of government in its rela¬ 
tions with the governed, when its action is directed to the general 
welfare as a trustee for all, and not to the punishment or correction 
of an individual or a class of individuals as a guardian for the weak 
and deficient, are, it would seem, to be found in the preamble of the 
Declaration of Independence and in the preamble of the constitu¬ 
tion. The Declaration is a federal constitution, since by it was 
formed the first union of the states. It is at the present time, in so 
far as it states general principles, our fundamental federal consti¬ 
tution. It has never been rescinded, nor in any way amended. 
It is not inconsistent with the constitution of 1787. The constitu¬ 
tion of 1787 recognizes the permanence of the principles set forth 
in the Declaration of Independence, and of those set forth in the 
Articles of Confederation except so far as they are inconsistent with 
the constitution, by declaring that its purpose is “to form a more 
perfect union.” 

The preamble of the Declaration of Independence asserts that 
“to secure these [unalienable] rights [of life, liberty and the pursuit 
of happiness], governments are instituted among men, deriving their 
just powers from the consent of the governed.” This makes the test 
of the constitutionality and validity of all governmental action in 
civilized society, first, whether the action of the government was 
taken under powers derived from the consent of the governed,—that 
is, under the delegation of powers contained in the agreement between 
the government and the governed; and, second, if the action was so 
taken, whether it is just as complying with the natural laws of the 
material universe and with those principles which in civilized society 


The Judiciary in the United States 303 

are universally recognized as fundamental; which are formulated, 
perhaps as well as anywhere, in the Ten Commandments of the Old 
Testament and in the Two Commandments of the New Testament. 
This same limitation upon all governmental action is implied in the 
preamble of the Constitution of the United States when it declares 
that the people of the United States have ordained and established 
the constitution in order “to establish justice.” Even in states 
where there is no written constitution specifying the particular 
powers delegated to the government, there exists from the necessity 
of the case a general limitation upon the powers of government, 
so that the courts can nullify all governmental action which is unjust. 

That there must be a general power in any superintending and 
nullifying agency within a corporation to nullify any action of other 
agencies which is palpably absurd or unjust, goes without saying. 
A state or national law which should enact that a horse should be a 
man, or that two and two should make five, or which should give a 
reward to persons convicted of theft or murder, would of course be 
held void by any court of any state or nation in the world, as violat¬ 
ing the natural laws of the material universe or the fundamental 
principles of social justice as laid down in the Decalogue. Our courts 
can find ample authority for nullifying such acts in the provision of 
the Declaration of Independence which declares that governments 
can exercise only “just” powers and in the provision of the preamble 
of the constitution that one of the purposes of the union is “to 
establish justice.” 

In the early constitutions of the states and in the fifth amend¬ 
ment of the Constitution of the United States, the expression “with¬ 
out due process of law” was used in the same connection as in the 
Petition of Right—that is, as limiting the power of the government 
to take away the life, liberty or property of the individual only when 
the governmental action is directed against an individual for alleged 
wrong-doing. In this connection the words meant that a person 
charged in court by another person with wrong-doing, or threatened 
by governmental action with loss of life or liberty or confiscation of 
property for alleged wrong committed against the state, could not 
be held by the government to be civilly liable and could not be penal¬ 
ized criminally except according to a proper procedure established 
in advance by law and according to principles of law duly formulated. 
In the fourteenth amendment, however, which was adopted after 


304 


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the Civil War, for the purpose of giving the federal government 
power to prevent the southern states from reinstituting slavery by 
indirect means, the provision that no state shall “deprive any person 
of life, liberty or property without due process of law ” was inserted 
in a connection where it might equally well be understood as covering 
cases where the state receives the property of honest citizens by way 
of taxation, or makes general regulations for the public good, and 
where it is seeking to take away life, liberty or property from persons 
who are charged with wrong-doing. The courts, under the leadership 
of the Supreme Court of the United States, have construed this 
provision as applying, to all kinds of governmental action. In so hold¬ 
ing it seems that the courts have clearly erred; since the expression 
“without due process of law,” as applied to all kinds of governmental 
action other than that whereby the government seeks to take away 
the life, liberty or property of the individual on the ground that he is 
a wrong-doer, is clearly meaningless. 

As the natural result of the attempt by the courts to use the 
words “without due process of law” as the general test of the validity 
of all governmental action when these words have no meaning except 
as applied to one kind of governmental action, our decisions in con¬ 
stitutional cases involving the relations between the government and 
the individual have become illogical and confused. The attempt 
to draw a meaning out of an expression which is meaningless because 
used in a wrong connection must necessarily lead to confusion. As 
the courts have applied an obscure and unreasonable test in the 
greater part of the cases involving the relations between the govern¬ 
ment and the governed, they have naturally fallen into the way of 
deciding these cases according to the personal or partisan notions 
of the judges. 

The true test, when laws passed in the exercise of the taxing 
power or the police power are claimed to be unconstitutional on 
general grounds, is, it would seem, not whether they comply or not 
with the “due process of law” provision, but whether or not they 
are “just.” In applying this test, the courts will of course not hold 
an act of the legislature not to be “just,” unless it vis-so clearly 
“against common right or reason, or repugnant, or impossible to 
be performed,” or “against natural equity” that for:the court to 
uphold it would be to make the court an-instrument of injustice 
instead of a court of justice. Thus in cases of poliey, where no 


The Judiciary in the United States 


305 


moral right or wrong was involved, the legislature would finally 
determine the rate of social and economic progress; the courts 
following the legislature. 

In the present situation, therefore, when our judiciary is under 
criticism, it seems that if the fourteenth amendment is agreed to 
be so worded that it requires the courts, in all cases involving the 
relations between the government and the governed, to decide by the 
test that the state shall not deprive the individual of his life, liberty 
or property without due process of law, that amendment ought to be 
amended. It would be sufficient if the words “for alleged wrong¬ 
doing” were inserted before the words “of life,” so that the phrase 
would read “nor shall any state deprive any person, on account of 
alleged wrong-doing, of life, liberty or property, without due process 
of law.” In case of governmental action aimed at individuals or 
corporations on account of alleged wrong-doing, it would then be 
the duty of the courts to see that the alleged wrong-doer had a fair 
hearing and trial under an appropriate process established by law, 
and according to principles of law duly established. 

But perhaps no such amendment is necessary. It may be 
considered that the fourteenth amendment was not intended to 
have the broad signification which the courts have attached to it, 
and that the natural meaning to be given to the words above quoted— 
especially as the words “deprived of his life, liberty or property” 
are used, which almost necessarily mean a taking away on account 
of wrong-doing—is the restricted one according to which the pro¬ 
vision in which these words occur is confined to governmental action 
directed against alleged wrong-doers. If so, the words are ambiguous, 
and the courts can by their own construction give the amendment 
its proper meaning. 

The provision denying to governments the power to deprive 
individuals of their life, liberty or property without due process of 
law is one which occurs in most of the state constitutions, and the 
state courts have followed the United States Supreme Court in con¬ 
struing it as applying to all forms of governmental action by state 
governments. If by constitutional amendment or by construction 
of the United States Supreme Court the restricted meaning above 
mentioned is given to this provision, the effect would be to induce 
the state supreme courts to restrict the meaning of these words in 
the state constitutions, and the confusion which has been caused by 


306 


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attaching too wide and general a meaning to this constitutional 
provision should, it would seem, tend to cease. 

If the courts should thus by a proper construction of the words 
due process of law ’ ’ be put in the position where they would have to 
apply specific and easily understood limitations of governmental 
powers as tests in exercising their superintending and nullifying power, 
with the addition that they were obliged to nullify any govern¬ 
mental action that was clearly not “just,” it is probable that there 
would not be much dissatisfaction with their constitutional decisions. 
If the issue was as to the application of a specific and plainly worded 
constitutional limitation, there would not be room for much personal 
or partisan reasoning by the judges. If the issue were as to whether 
a particular governmental action was “just,” the court would hold 
such action unconstitutional only in case it was clearly absurd or 
impossible, as being opposed to the natural laws of the material 
universe, or in case it was clearly wrongful as being opposed to 
the fundamental principles of social justice formulated in the Ten 
Commandments of the Old Testament and in the Two Command¬ 
ments of the New Testa lent. The natural laws of the material 
universe are necessarily fundamental law; and it is not too much 
to say that the Great Commandments are now accepted, in theory 
at least, throughout the society of nations, as fundamental law. 
Courts in determining whether governmental action was or was 
not just would in fact be sitting not as state or national courts, but 
as courts of the society of nations; for the same principles which 
would determine whether a certain governmental action was unjust 
in one nation, would equally control in a similar case in every other 
nation, and any court in deciding such a case would in a very true 
sense be applying the constitutional law of the society of nations 
as the supreme law. 

In passing it may be said that this conception of our national 
courts sitting as courts of the society of nations is not a fanciful 
suggestion, but is a practical political fact. More and more states¬ 
men and publicists everywhere are realizing and accepting as a fact 
of practical politics that there is a society of the peoples, states and 
nations of the world, which for want of a better name we call “the 
society of nations;” that this society is a corporation composed of 
corporations and a federal state, having a federal government which 
is the agent for the common purposes of the peoples, states and 


The Judiciary in the United States 


307 


nations governed; that this federal government does not consist 
of a body of definite persons, collected together in one place as the 
capital, and is not elected on the representative basis, but is made up 
of nations, states, governmental officers of nations and states, and 
publicists, scattered over the face of the earth, and is carefully 
arranged so as to protect the rights of the weaker states and nations 
and of all minorities; that this inclusive society and federal state 
has by various legislative methods formulated and is still formulating 
its own federal constitutional, statutory and customary law, com¬ 
monly known as “international law;” and that it is daily enforcing 
its federal law by various executive methods and particularly through 
the nations and states as its executive organs; and that therefore 
national courts, in determining what is “just,” are not at liberty to 
consider alone what is regarded as just by the “common juridical 
conscience” of their own nation, but must also consider what is 
regarded as just, and treated as fundamental law, by the “common 
juridical conscience” of the society of nations. 

We may, therefore, it would seem, reasonably hope that by mak¬ 
ing all our special constitutional limitations clear and distinct and 
easily understood,—which we shall do by giving the “due process 
of law” provisions a restricted meaning so that they will apply only 
where governmental action is directed against individuals as alleged 
wrong-doers,—and by making the only general test of constitution¬ 
ality the test of “justice,”—regarding “justice” as that which is 
considered just by the “common juridical conscience” of the society 
of nations,—the courts will, as a general rule, act in a manner satis¬ 
factory to the enlightened intellect and conscience of the people. 
But when all precautions are taken it may still happen that the courts, 
as the superintending and nullifying agencies of our states as cor¬ 
porations, will occasionally err and will themselves exceed their 
powers and act unconstitutionally. The question arises, what shall 
be the remedy in such a case. 

One remedy which has already been frequently applied, is to 
amend our constitutions so as to recall the erroneous decisions and 
validate future governmental action of the kind which the courts 
have wrongly nullified. But such a process of amending our consti¬ 
tutions is dangerous to our system. Our written constitutions by 
such amendments are ceasing to be statements of fundamental 
principles and are becoming confused legislative codes. Thus by 


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this method of attempting to remedy the difficulty our written 
Constitutions are being indirectly destroyed. It is necessary, there¬ 
fore, to consider other possible remedies. 

If we agree that states are corporations, the remedy to be applied 
where the courts of a state exceed their powers to superintend and 
nullify other agencies and nullify wrongly, is the same as would be 
applied in a corporation if a superintending and nullifying official in 
a corporation should wrongly exercise his powers of superintendence 
and should nullify action which he ought to have allowed to stand 
as valid. The members of the corporation, while indulging in every 
presumption in favor of the superintending and nullifying official, 
and relying, as reasonable men ought to do, upon his expert judgment 
to the fullest extent possible, would, if they were satisfied beyond a 
reasonable doubt that he had nullified action of an agent which he 
ought not to have nullified, either remove him by vote of the majority 
of the members or validate by similar vote the action which he pur¬ 
ported to nullify. 

This seems to be what is meant by “the recall of judges’’ and 
“the recall of decisions,” as these expressions are now used by those 
who believe our courts have erred. The recall of judges is, however, 
used in two senses which it is necessary to distinguish from each other. 
There is a recall of judges for incompetence, and a recall of judges 
for having participated in constitutional decisions by which govern¬ 
mental action has been wrongly nullified. The recall of judges for 
incompetence, and the recall of judges for participation in constitu¬ 
tional decisions which are erroneous, stand on entirely different 
grounds. Every state or nation ought to have some orderly method 
of removing judges for incompetence. Impeachment does not meet 
such a case, since impeachment is permissible only where moral 
turpitude can be proved. The best method of removal see is to be 
by action of the legislature addressed to the executive, though there 
appears to be no serious objection to a referendum for this purpose 
if the people prefer it, and it happens to work well in a given state or 
nation. The recall of judges for participation in constitutional 
decisions in which governmental action is erroneously nullified, or 
the recall of these decisions, must be by referendum, if at all; though 
the referendum need not actually remove the judges or actually 
reverse the decision. That the people assembled may exercise this 
right without necessarily destroying our system is evident. That, 


The Judiciary in the United States 


309 


in extreme and clear cases, they not only may but ought to exercise 
in some manner the right to validate governmental action wrongly 
nullified by the courts is also evident. That this is a dangerous 
power to be exercised by popular vote is also evident, since it is only 
in extreme and rare cases that the popular judgment would be likely 
to be more correct than the expert judgment of the courts. If exer¬ 
cised frequently and if exercised wrongly, it would tend to unsettle 
our whole system and in the end would probably destroy it. But 
that a power is dangerous to exercise, is no reason why it should 
never be exercised. That it is dangerous is a reason for using caution 
when the power is exercised, and the more dangerous it is the greater 
ought to be the caution in exercising it. 

The recall of judges and the recall of decisions, when used to 
correct aberrations in the constitutional action of the courts, should 
undoubtedly be used rarely, and only in extreme cases and as a last 
resort; and even then with caution and under the most careful safe¬ 
guards. It should always be remembered that the decision of a court 
is final only in the case decided, and is never final as settling legal 
principles; that it is generally the part of wisdom to trust to experts 
in matters which are complicated and which can be fully mastered 
only by experts who give their lives to learning the art; that the 
court as an institution is everlasting; and that though one bench 
of judges may err, another bench may correct the error, so that the 
court as an institution is never likely to be wrong except temporarily. 
Considering the dangers of the recall of judges or the recall of deci¬ 
sions, it seems that it is on the whole safer, in all but the most extreme 
and rare cases, to trust to the courts correcting their own errors by 
the pressure of public opinion; never allowing them to forget, how¬ 
ever, that they are only the superintending and nullifying agencies 
of the state as a corporation, and that the people of the state as mem¬ 
bers of the corporation have the right, which they can and will 
exercise in the last resort, to annul unconstitutional action of the 
courts as such superintending and nullifying agencies and to validate 
the nullifying action, or, at their option, to remove the judges who 
have thus erred. To grant that the courts in the United States have 
powers not subject to control by the people in the last resort is to 
make the courts the American patriarchs or emperors. Like every 
other governmental agency, our courts, whatever may be the func¬ 
tions they exercise, are the agents of the governed and form a part of 


310 


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the managing boards of the states and of the nation as corporations. 
Though they have greater functions than the courts of foreign coun¬ 
tries, they have a responsibility to the people which prevents the 
abuse of these great functions. There appears no likelihood that there 
will ever be such a use of the initiative, the referendum or the recall 
as will interfere with the performance by our courts of these func¬ 
tions; and there is much in the movement for recall of judges and 
recall of decisions to encourage the belief that sturdy manhood still 
persists throughout the American jurisdiction, demanding that 
governments shall be and remain the agents of the governed. 



































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THE AMERICAN ACADEMY OF POLITICAL 
AND SOCIAL SCIENCE 

Origin and Purpose. The Academy was organized December 14, 
1889, to provide a national forum for the discussion of political and social 
questions. The Academy does not take sides upon controverted questions, but 
seeks to secure and present reliable information to assist the public in forming 
an intelligent and accurate opinion. 

Publications. The Academy publishes annually six volumes dealing 
with the six most prominent current social and political problems. Each volume 
contains from twenty to twenty-five papers upon the same general subject. The 
larger number of the papers published are solicited by the Academy; they 
are serious discussions, not doctrinaire expressions of opinion. The Academy 
publications, now approaching one hundred in number, give the most compre¬ 
hensive account anywhere obtainable of the political and social questions that 
have been before the American people during the past twenty years. 

Meetings. The Academy holds five scientific sessions each year during 
the winter months, and it also has an annual meeting in April, extending over 
two full days and including five sessions. The papers of permanent value 
presented at the meetings are included in the Academy publications. 

Membership. Membership in the Academy may be secured by apply¬ 
ing to the Secretary, Logan Hall, University of Pennsylvania, Philadelphia. The 
membership fee is $5.00; life membership fee, $100. Members receive all 
the regular publications of the Academy, are invited to attend and take part in 
the scientific meetings, and have the privilege of applying to the Publication 
Board for information upon current political and social questions. 


